Law 897: The Law in Cyberspace

New Developments

Disney v. Hotfile

12/4/13 -- The Motion Picture Association of America and Hotfile.com have settled their copyright infringement suit on the eve of trial. Hotfile has agreed to pay $80 million and to shut down. The MPAA Press Release says that Hotfile may resume operations only if it employs copyright filtering technologies that prevent infringment. According to the press release, "The ‘digital fingerprinting’ copyright filtering ordered by the Court is proven to work and readily
available from several commercial technology providers. Major websites and content services have
been using the technology for years."
Read Joe Mullin’s story for Ars Technica.

11/14/13 -- Judge Chin has issued his opinion in Authors Guild v. Google, granting Google’s motion for summary judgement on the ground that Google’s scanning of the books, creation of the search engine for the books, display of snippets, and distribution of copies to its partner libraries, and the uses made by the libraries, are all fair use under 17 USC § 107.

10/28/13 -- Ars Technica’s Jon Brodkin reports that the National Security Agency eavesdropped on the telephone calls of 35 world leaders without informing the Obama Administration. When the President learned, five years into his administration, about the program, he apparently instructed the agency to be more selective in its decisions to monitor particular subjects. CNN reports that the NSA finally told the President about the program this past summer, after Edward Snowden leaked classified documents.

Thursday’s NSA Surveillance tidbit

10/24/13 -- The Guardian reports that the NSA routinely monitored the telephone calls of 35 words leaders. Earlier, German chancellor Angela Merkel accused the US of tapping her mobile phone; the US responded that it was not doing so currently and would not do so in the future.

شبكة, онлайн, сайт, and 游戏 went up the hill...

10/24/13 -- ICANN has announced the approval of four new generic top level domain names, one in Arabic, one in Chinese and two in Cyrillic. The GTLDs will be deployed after the registries give trademark owners the opportunity to block infringing domain names in the new tlds.

10/25/13 -- The Illinois Supreme Court opinion striking down Illinois Public Act Public Act 96-1544 is HERE. The majority ruled the law was preempted by the federal Internet Tax Freedom Act, and declined to reach the commerce clause challenge. Justice Karmeier dissented, arguing that the law is neither preempted not invalid on commerce clause grounds.
Read Annie Youderin’s story for the Courthouse News Service and Janet Novack’s story for Forbes.

ACLU v. US

10/18/13 -- The American Civil Liberties Union has filed suit seeking a court order compelling the Department of Justice to respond to the ACLU’s FOIA request seeking records related to the government’s use of evidence derived from surveillance authorized by the FISA Amendments Act in criminal prosecutions. The suit claims that the statute requires the government to disclose its intention to use evidence obtain through FISA-authorized surveillance in any criminal prosecution, and that it has never done so.
Read David Kravets’s story for Wired.

Tuesday’s NSA Surveillance tidbits

10/15/13 -- The Washington Post’s Barton Gellman and Ashkan Soltani report that the NSA has been intercepting and collecting e-mail address books and "buddy lists" from instant messaging services as they move across global data links. "During a single day last year, the NSA’s Special Source Operations branch collected 444,743 e-mail address books from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail and 22,881 from unspecified other providers."

In an only marginally related story, Joe Mullins of Ars Technica reports that U.S. Solicitor General Donald Verrilli has filed a brief in In Re EPIC, urging the Court to deny EPIC’s petitions for mandamus and certiorari. The brief explains that the U.S. Supreme Court lacks jurisdiction to review the decisions of the Foreign Intelligence Surveillance Court.

Is it really Google’s fault?

10/15/13 -- The Motion Picture Association commissioned a Report that purported to find that search engines in general and Google in particular are responsible for leading consumers to engage in movie piracy. Tech Liberation Front’s Jerry Brito, Eli Dourado, and Matt Sherman have posted PiracyData.org, a site reporting whether there are legal alternatives for viewing or downloading the most-pirated movies. Brito writes:

"...one implication of the early results may be that when movies are unavailable, illegal sources are the most relevant search results, so search engines like Google are just telling it like it is. That is their job, after all.
Also, while there is no way to draw causality between the fact that these movies are not available legally and that they are the most pirated, it does highlight that while the MPAA is asking Google to take voluntary action to change search results, it may well be within the movie studio’s power to change those results by taking voluntary action themselves."

Tuesday’s NSA Surveillance tidbit

10/8/13 -- Politico’s Josh Gerstein and Mike Allen report that the government shutdown has shut down the Review Group on Intelligence and Communications Technologies that was appointed to review NSA Surveillance of US citizens. In unrelated news, Ars Technica’ Cyrus Farivar reports that new allegations have surfaced about surveillance activities by the governments of Canada and Germany.

10/3/13 -- The California revenge porn law that Michael mentioned in class is here.
Governor Brown signed the bill into law on Tuesday.
Read Adi Robertson’s story for the Verge.

10/7/13 Update: New York Assemblyman Edward Braunstein and Senator Joseph Griffo have announced that they have introduced a bill, modeled on the California law, to criminalize revenge porn in New York State. Read Jessica Roy’s story for Time.

Marceaux v. Lafayette City-Parrish Consolidated Government

10/1/13 -- Lafayette police officers, angry at what they believed to be widespread corruption in the police department, posted a website at www.realcopsvcraft.com presenting evidence of that corruption in a dramatic matter. The site included surreptitiously recorded police conversations posted without the consent of the speakers. The chief of police
forbade officers from making internal police department matters public, and allegedly retailiated against the officers for posting information to the website. Several of the officers filed a § 1983 lawsuit in federal court seeking damages for the retaliation. The police department sought dismissal of the lawsuit and asked the court for a protective order requiring plaintiffs to remove the website. Magistrate Judge Patrick J. Hanna obliged. On Monday, the Fifth Circuit reversed that order as an unlawful prior restraint. Read Cyrus Farivar’s story for Ars Technica.

next year’s dormant commerce clause challenge...

9/24/13 -- California Governor Jerry Brown has signed Senate Bill 568, nicknamed the "eraser button bill." As of January, 2015, the new law requires online services to give California minors under the age of 18 an option to delete or block from public view information that they posted about themselves but later regret making public. It also prohibits knowingly marketing products to minors that it is illegal in California for those minors to purchase.
Read Steven Musil’s story for c|net News.com.

10/3/13 Update: Eric Goldman, who lives in California, has some scathing remarks about the new law.

Perkins v. LinkedIn

9/23/13 -- Surely you recall receiving random email invites from acquaintances seeking to connect with you on LinkedIn. If you followed up with the aquaintances, they probably told you that they knew nothing about it, and apologized for the spam. (Or, maybe you just clicked the link confirming that you knew them; if not, you probably got a reminder of the invitation seven days later.) Now, Paul Perkins, Pennie Sempell, Ann Brandwein and Erin Eggers have filed a class action against LinkedIn, alleging that LinkedIn breaks into its users' third party email accounts, downloads email addresses that appear in the accounts, and then sends out multiple reminder emails ostensibly on behalf of the users advertising LinkedIn to non-members. Plaintiffs complain that Linkedln provides no functional way to stop multiple
subsequent advertising emails from being sent. The whole scheme, they insist, invades their privacy and violates their common law rights of publicity, as well as the California deceptive practices statute, the Stored Communication Act, the federal wiretap statute, and the state Comprehensive Data Access and Fraud Act. The suit seeks an injunction, damages, and disgorgement of LinkedIn’s profits. LinkedIn says that none of the accusations are true. If you want to join the nationwide class, plaintiff’s lawyers have helpfully posted a webpage inviting you to share your LinkedIn stories.

New York’s "Operation Clean Turf"

9/23/13 -- Eric Schneiderman, Attorney General of New York State, announced today that after a year-long undercover investigation, his office had discovered that businesses had flooded the web with fake reviews. Nineteen of those businesses have agreed to pay fines and renounce astroturfing.
Read David Streatfield’s story for the NY Times.

Bland v. Roberts

9/19/13 -- When B.J. Roberts, sheriff of Hampton, Va, ran for reelection, several of his employees indicated that they supported his opponent by "liking" the Facebook page of the opponent’s campaign. Roberts won reelection and declined to reappoint those employees. They filed suit, claiming that Roberts retailiated against them in violation of their first amendment rights. Last year, a Virginia federal district court granted summary judgment to Roberts, ruling that merely "liking" a Facebook page was insufficient speech to merit constitutional protection. Yesterday, the Court of Appeals for the 4th Circuit reversed. Clicking the like button for a political candidate, the court ruled, is speech protected by the first amendment.

Wednesday’s NSA Surveillance tidbit

9/18/13 -- The government has declassified last month’s Foreign Intelligence Surveillance Court opinion concluding that the NSA’s collection and analysis of telephone metadata is authorized by section 215 of the Patriot Act and does not offend the 4th Amendment.

more than a little creepy

9/17/13 -- For schools worried about their legal responsibility to avert suicide or violence committed by their cyberbullied students, Geo Listening claims to offer a solution. The company will monitor social media to detect whether a student may be depressed, bullied, engaging in hate speech, or violating the school’s code of conduct, and will notify school officials when it detects cause for concern. Geo Listening claims that the Glendale Unified School District, north of downtown Los Angeles, is one of its satisfied customers.
Read Cyrus Farivar’s story for Ars Technica.

Jeffries v. United States

9/17/13 -- Franklin Jeffries posted an angry YouTube video complaining to a family court judge about the protracted custody battle involving his daughter. A federal jury convicted Jeffries of transmitting a threat in interstate commerce in violation of 18 U.S.C. § 875(c), and Jeffries was sentenced to serve 18 months in prison. Jeffries appealed to the Court of Appeals for the Sixth Ciruit, which affirmed his conviction. Jeffires has petitioned the U.S. Supreme Court for certiorari. Read David Kravets’s story for WIRED.

9/17/13 --The Foreign Intelligence Surveillance Court has released an order instructing the government to conduct a declassification review of FISC opinion related to section 215 of the Patroit Act. Read Joe Mullin’s story for Ars Technica.

Thursday’s NSA surveillance tidbit

9/12/13 -- This week, the Director of National Intelligence released documents showing that the NSA telephone call surveillance program exceeded the limits set by the FISA court, and then lied to the court about it. Read Scott Shane’s story for the New York Times. NSA officials claim the problem is that the surveillance protocol was too complicated for anyone at NSA to understand it, so the agency kept making mistakes.

Yelp v. Macmillan

9/12/11 -- Julian MacMillan sued Yelp in small claims court over his contract to advertise on the site. The small claims court dismissed the suit because the contract included a binding arbitration clause. While the small claim was pending, Yelp filed a lawsuit in California superior court accusing MacMillan and his employees of posting fake five-star reviews of his law firm. Macmillan insists that the allegations in the complaint are untrue, but Yelp cites a bunch of apparently damning evidence that people who worked at the Macmillan firm created Yelp accounts for the purpose of posing as clients and posting rave reviews. (On the Internet, everyone knows that you are a dog.) This is apparently only the second lawsuit ever that Yelp has filed over fake reviews.
Read Cyrus Farivar’s story for Ars Technica.

Malibu Media v. Doe

9/11/13 -- Malibu Media, a producer of pornographic films, is one of the firms that files copyright infringement suits against many unnamed John Doe defendants. Malibu has adopted an effective tactic to maximize the humilation of its target defendants. It attaches to its complaints a long list of pornographic movies allegedly downloaded by John Doe, some of which have highly embarrassing titles. Many of the films on the list, however, are not owned or marketed by Malibu. (Malibu seems to favor more discreet titles for its own releases.) Rather, the idea seems to be that including the titles will make the Doe defendants more eager to settle before being publicly identified. The Electronic Frontier Foundation persuaded the court where ten of these cases have been filed to impose Rule 11 sanctions in the amount of $200 per John Doe.

Friday’s NSA Surveillance tidbits

9/6/13 -- Over the government’s objection, the New York Times has published a news story drawn from some of the documents leaked by Edward Snowden, reporting that the NSA has successfully attacked the secrecy made possible by encryption, both by hacking the encryption and by using a variety of methods to undermine its effectiveness. These strategies have included "technical trickery, court orders and behind-the-scenes persuasion:

"Because strong encryption can be so effective, classified N.S.A. documents make clear, the agency’s success depends on working with Internet companies — by getting their voluntary collaboration, forcing their cooperation with court orders or surreptitiously stealing their encryption keys or altering their software or hardware."

In a column for the Guardian, computer security specialist Bruce Schneir writes that the NSA has "subvert[ed] the internet at every level to make it a vast, multi-layered and robust surveillance platform." Schneir calls on fellow engineers to redesign the Internet to make it more resistant to surveillance. Meanwhile, he has some advice for the rest of us.

Fox v. FilmOnX, LLC

9/6/13 -- The efforts of broadcast and cable companies to enjoin businesses that capture free broadcast television using antennaes and transmit it to subscribers over the Internet have generated uneven results. So far, Big TV is winning in California and losing in New York. Yesterday, the district court for the District of Columbia handed the four major television networks a victory, concluding that the copyright act forbids the unlicensed transmission of television programming over the Internet and preliminarily enjoining FilmOnX from operating a website that the court chracterized as combining "the functionality of a
television with that of a digital video recorder."

Hemisphere covers every call that passes through an AT&T switch — not just those made by AT&T customers — and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers"

The DEA, meanwhile, allegedly pays AT&T to assign its employees to work with DEA agents
in tracking down drug dealers. View leaked powerpoint slides describing the program here.

Seaton v. TripAdvisor

8/30/13 -- TripAdvisor aggregates traveler reviews of hotels, restaurants, and popular travel destinations. In 2011, TripAdvisor posted a list of the ten "dirtiest hotels" in the United States. Number one on the list was the Grand Resort in Pigeon Forge, Tennessee. The owner of the Grand Resort sued TripAdvisor for defamation. The trial court dismissed the complaint, and the hotel appealed. On Wednesday, the Court of Appeals for the 6th Circuit affirmed the dismissal of the complaint:

Seaton failed to state a plausible claim for defamation because TripAdvisor’s "2011 Dirtiest Hotels" list cannot reasonably be interpreted as stating, as an assertion of fact, that Grand Resort is the dirtiest hotel in America. We reach this conclusion for two reasons. First, TripAdvisor’s use of "dirtiest" amounts to rhetorical hyperbole. Second,the general tenor of the "2011 Dirtiest Hotels" list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America. For these reasons, TripAdvisor’s placement of Grand Resort on the "2011Dirtiest Hotels" list constitutes nonactionable opinion

According to the most recent reviews on TripAdvisor, the hotel closed its doors in December 2012.

Disney v. Hotfile

8/30/13 -- The Motion Picture Association of America announced on Wednesday that it had won its copyright infringement suit against cyberlocker Hotfile. U.S. District Court Judge Kathleen Williams granted plaintiffs’ summary judgment motion in an opinion that is under seal to permit the redaction of confidential and proprietary information.

8/27/13 -- On Monday, Judge Richard Seeborg gave final approval to the settlement of a class action lawsuit against Facebook complaining that its "Sponsored Stories" program misappropriated the names and likenesses of millions of individuals for commercial advertising. Facebook will pay $ 20 million and agree not to do it again; a small percentage of class members will receive small payments of $15 each, the named plaintiffs will recover $1500 each, plaintiffs’ laywers will receive about $5 million in attorneys’ fees, and several million dollars will be split among The Center for Democracy and Technology, the Electronic Frontier Foundation, MacArthur Foundation, the Joan Ganz Cooney Center, Harvard Law School’ Berkman Center for Internet and Society, NYU Law School Information Law Institute, Berkeley Center for Law and Technology, Stanford Law School Center for Internet and Society, Santa Clara University School of Law High Tech Law Institute, the Campaign for Commercial-Free Childhood, Consumers Federation of America, Consumer Privacy Rights Fund, ConnectSafely.org, and WiredSafety.org.

8/20/13 Update: Now that the court has granted final approval to the settlement, Facebook has announced proposed updates to its policies. It will still do everything it got sued for doing, but it will tell Facebook users more clearly that they have no realistic options to prevent it from doing those things except to delete their Facebook accounts.
Read Vindu Goel’s post for the NY Times, or Kelly Fiveash’s snarkier story for the Register.

9/12/13 Update: The New York Times reports that the Federal Trade Commission has opened an inquiry into whether Facebook’s latest privacy policy update violates a 2011 consent decree requring it to secure explicit consent from its users before exposing their personal information.

Lessig v. Liberation Music

8/23/13 -- Larry Lessig posted a video of one of his lectures on YouTube. The lecture included clips of amateur music videos, each showing different people dancing to the song "Lisztomania".
Liberation music sent a takedown notice claiming that the video infringed Liberation’s copyrights. YouTube blocked the video. Lessig sent a counternotice insisting that the use of copyright-protected material was fair use. Liberation responded with a threat to sue Lessig unless he retracted his counternotice. Lessig then retracted his counternotice and filed a declaratory judgment suit against Liberation. The suit seeks a declaration that Lessig’s use of video clips containing Lisztomania is fair use, and that Liberation sent its takedown notice in bad faith in violation of 17 USC § 512(f). It also seeks an injunction and damages. Read Joe Mullin’s story for Ars Technica and Eriq Gardner’s story for the Hollywood Reporter. (Lessig’s lecture remains blocked pending the resolution of his suit. If you've never seen an amateur Lisztomania copycat video, though, you can view one here.)

in another part of the forest...

8/22/13 -- The folks at Datacoup have launched Get Prsm. As my husband put it, "worth a visit."

Wednesday’s NSA surveillance tidbit

8/21/13 -- James Clapper, Director of National Intelligence, declassified and released documents, including redacted FISA court opinions, revealing some information about the NSA’s surveillance activities under FISA, and posted a new Tumblr site "designed to provide immediate, ongoing and direct access to factual information related to the lawful foreign surveillance activities carried out by the U.S. Intelligence Community." The newly released documents include a 2011 FISA Court opinion determining that parts of the NSA surveillance program violated the 4th amendment. Read Charlie Savage’s and Scott Shane’s coverage for the New York Times.

collateral damage

8/20/13 -- Pamela Jones, owner of the Groklaw blog, announces that in response to the revelations about the NSA bulk collection of email, she is shutting the blog down.

Friday’s NSA surveillance tidbit

8/16/13 -- The Washington Post recaps the findings of an internal NSA audit identifying 2776 occasions on which the NSA overstepped its legal authority.

Backpage v. Hoffman

8/16/13 -- The federal district court for the District of New Jersey has preliminarily enjoined New Jersey Public Law c. 51 § 12(1)(1) , which sought to combat online ads for underage sex workers by imposing criminal liability on anyone who knowingly "causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor..." The court agreed that plaintiffs were likely to show both that the state law was preempted by section 230 of the Communications Decency Act, and that it could not survive a First Amendment challenge.

and in local news...

8/14/13 -- Techdirt reports that, last month, Detroit Police Commander Dwayne Love emailed a spreadsheet to the entire Detroit Police force containing the names, weights, and bra cup sizes of all female Detroit police officers. The officers had apparently supplied the information to enable the department to supply correctly-fitted bullet-proof vests. Unaccountably, some of the male recipients of the information made use of it to tease and embarrass their female colleagues. Commander Love says that he didn't realize the information appeared on the attachment to his email message, and has promised to apologize.

Poulson v. DHS

8/13/13 -- The United States Secret Service has released the first 104 pages of Aaron Swartz’s Secret Service File. DHS estimates that there are 14,396 more pages to go. Journalist Kevin Poulson sought Swartz’s file in a FOIA request after Swartz commited suicide. The Secret Service denied Poulson’s request on the ground that disclosure of the file "could...interfere with enforcement proceedings." Poulson filed suit, and the Judge ordered the government to release the files on a rolling basis. Read Poulson's coverage of his FOIA suit at WIRED.

Monday’s NSA suveillance tidbit

8/12/13 -- On Friday, the Obama Administration released a previously classified Justice Department analysis asserting that the government’s bulk collection of domestic phone logs is authorized by section 215 of the Patriot Act. (If you are in a hurry, NPR has posted a single-page digest of the legal reasoning here.)

9/6/13 UPDATE: Judge Cote has released her final judgment, restricting Apple from entering into or enforcing retail price most-favored-nation clauses in agreements with e-book publishers, and calling for Apple to appoint an antitrust complaince officer and to cooperate with an external antitrust compliance monitor to be appointed by the court.

Three strikes and you’re still in

7/10/13 -- The French Ministry of Culture and Communication issued a decree on Monday abolishing the penalty of suspension of Internet access for repeat copyright infringers.

Authors Guild v. Google

7/2/13 -- The Court of Appeals for the Second Circuit has reversed the district court’s certification of a class of authors in the copyright infringement suit challenging the Google Book Search project. The court ruled that the district court should address the merits of Google’s fair use defense before certifying the class.

Federal Legislation in the 113th Congress

There are hundreds of pending bills in the 113th Congress that seek to make Internet law. Here’s a sampling: